Interview with Col. Morris Davis

While most people weren’t looking, America’s controversial detention facility at Guantanamo Bay turned ten years old a few weeks ago; for some reason, the President didn’t mention this during the State of the Union. I used the occasion of Guantanamo’s birthday party in Washington, D.C. to meet, and to arrange an interview with, retired Air Force Col. Morris Davis, once the Chief Prosecutor of the Guantanamo military commissions, and now one of the most outspoken critics of our nation’s entire “indefinite detention” regime. The interview is here (and cross-posted atthe talking dog blog.)

Col. Morris Davis (USAF, Ret.) is a professor at the Howard University School of Law. From 2005 until 2007, Col. Davis was the Chief Prosecutor for the Guantanamo Bay military commissions. He resigned from that post in 2007 in protest of political interference in prosecutorial functions. He retired from active military service in 2008 and became the head of the Foreign Affairs, Defense and Trade Division in the Congressional Research Service. He served in that post until January 2010, when he was terminated after publishing op-ed articles critical of Guantanamo and war on terror policies.

On January 12, 2012, I had the privilege of interviewing Col. Davis by telephone. What follows are my interview notes, as corrected by Col. Davis.

The Talking Dog: Where were you on 11 Sept. 2001, and what do you recall of that day?

Morris Davis: I was in Montgomery, Alabama, at the Air Force Judge Advocate General’s School, where I was the deputy commandant. We were in the Central time zone, an hour behind the events on the east coast. I was in my office, and directly across the room from my desk was a television that I usually kept on the news with the sound muted. I sat there with my feet up on the desk, drinking a cup of coffee and reading a report, while the news played on the television in the background. As soon as I saw what was happening I called some others into my office. The consensus was that this was some kind of an accident … until the second plane hit. We knew instantly that the world had just changed.

What I recall most, and I’m not sure why it made such a vivid impression, is that on my way home that evening I stopped at a grocery store to pick up something. I was still in uniform, and when I got to the cash register an older lady was about to unload her basket when she saw me and said “You go ahead of me, please; I know this day’s been a lot harder on you than it has on me.” At first I was going to decline, but then I realized that it probably made her feel a little better to think that she was “doing something” when there really wasn’t much she or anyone else could do.

The Talking Dog: My understanding is that the first three commission prosecutions in which charges were put forth were the cases of David Hicks, Omar Khadr, and Salim Hamdan. Can you discuss why these three men in particular, respectively an apparent Taliban foot soldier, a grievously wounded 15-year old kid [who may or may not have thrown a grenade in an apparent combat situation] and a motor-pool driver for OBL (albeit apparently transporting armaments) ended up being the initial poster children for “the New Nuremberg”?

Morris Davis: Traditionally, when you think of war crimes and the types of crimes envisioned by the laws of war, you think of the Herrmann Görings and the big names, and not of common foot soldiers. Some people find it somewhat ironic that there even is a law of war and that there isn’t a doctrine of “win by any means necessary.” But the laws of war have evolved over hundreds of years. And there are unquestionable benefits to a code of conduct for waging wars that include consequences for not complying with the rules, and particularly for accountability for those in command, which is meant to be applied in a top-down manner.

That said, I came into the job of chief prosecutor for the commissions in September of 2005. There were already more than a dozen men subject to charges that had come down under the original Bush military order of November 13, 2001. Under the original Bush order, every one charged had to have an “RTB” [a presidential determination of a “reason to believe” that the individual was a member of Al Qaeda or supported international terrorism] before they were eligible to be charged. The Criminal Investigation Task Force [“CITF”] based in Ft. Belvoir, VA was the military’s law enforcement arm. CITF was tasked with collecting up all of the bits and pieces of information that might constitute the basis for this RTB assessment, and then it would try to put the information into a format so that it was in a coherent and presentable form. If there was an “RTB” for a given defendant, before charges could be preferred, this RTB had to make its way from CITF to the chief prosecutor’s office, and then through DOJ, the Pentagon, the NSC, and ultimately to President Bush for his personal review and signature. And even this was only a preliminary step prior to charges. At the time the Supreme Court struck down the executive-order based commission scheme in June of 2006 in the Hamdan case, around 2 dozen RTB’s had been signed by President Bush.

In 2006, when the Military Commissions Act of that year was passed, and President Bush signed it with great fanfare, and KSM and the other “high value detainees” were transferred from CIA black sites to the military at Guantanamo, in order just to implement the new statute, the Secretary of Defense had to sign off on a new Manual for Military Commissions — the statute was only a bare-bones framework. The manual lays out elaborate details for the actual procedures to be used in commissions. That manual first came out in late January 2007, after the new statute went into effect. The most logical cases to charge under the new system were, of course, those cases that were already prepared under the old system.

DoD General Counsel Jim Haynes called me in early January 2007 and asked how quickly I could charge David Hicks. It was the first time he ever called me to inquire about a specific case. I personally would love to know the real back story on how Hicks became the top priority case. Jim Haynes also asked if I could charge others in addition to Hicks. He didn’t say why, but it was my impression that he wanted me to have “a package” of cases — that he did not want Hicks to be the sole detainee charged – and he wanted others charged so it didn’t appear Hicks was being singled out for special treatment. At that time, we had about six cases that we were looking at as potentials ones we could charge under the newly reformed military commission rules. Hicks was clearly the priority, and out of the five or six other potential cases we picked Khadr and Hamdan because the prosecutors on those cases were prepared and ready to move forward.

The Talking Dog: A complaint regarding the military commissions that I got in my very first Guantanamo-related interview (with Josh Dratel, then a civilian attorney for David Hicks) was that the rules kept changing, constantly. My understanding is that you, as chief prosecutor, had similar complaints… can you comment on that?

You have to go back to the start and the November 2001 order by President Bush. It looked an awful lot like FDR’s 1942 order to prosecute the Nazi saboteurs (who were charged, tried, took an appeal to the Supreme Court, executed and buried all within 43 days). The Bush authorization for military commission was in effect for almost five years. In 2006, after the Supreme Court struck down the Bush-ordered commissions in the Hamdan decision, Congress passed the Military Commissions Act of 2006, and new manuals and directives came down, as I noted, beginning in late January 2007. In 2008, then Candidate Barack Obama talked about the gross inequities of the Military Commissions Act of 2006; in fact, he had voted against it in 2006 when he was in the Senate. When he became President Obama, and then did an about-face on the evils of military commissions, he had to get the Military Commissions Act of 2009 passed so he could say what he had so eloquently condemned before was now just fine. That, in turn, required more new manuals, directives and orders in an effort to make it appear that the commissions were somehow reformed and improved. If you want a real-world illustration of the expression “putting lipstick on a pig,” this is it. It was some cosmetic tinkering around the margins to make things politically palatable.

But, as Josh Dratel correctly observed, the rules changed; and they’ve changed more since then and they continue to change.

The Talking Dog: Also, regarding Hicks, my understanding is that notwithstanding that you were the chief prosecutor for the military commissions, neither you nor the line prosecutors were actually involved in plea negotiations, but that the real plea negotiations ultimately took place between Hicks’s lawyers [which included Josh Dratel], Vice President Cheney’s office (and the convening authority Judge Susan Crawford, formerly an assistant to Mr. Cheney) and perhaps the Australian government… can you comment on that?

Morris Davis: Your supposition is probably true; I wish I knew exactly what transpired, and I don’t, but I would certainly bet that the Vice President’s office took up the Hicks case to help Australian Prime Minister John Howard. I don’t know precisely what happened, but I do know that neither I nor anyone in the chief prosecutor’s office was actually involved in the plea negotiations. We thought we were going to Guantanamo to do an arraignment that day. Instead, after we arrived at Gitmo, we learned that Hicks would be entering a guilty plea and the case would be done immediately!

Josh had to sign an agreement that he would be bound by rules that in some parts were a work-in-progress and had not yet even been written. Because he could not agree to sign a document saying he would abide by rules that he hadn’t seen, the judge refused to permit him to continue to represent Hicks in court and he had to leave the defense table. By the way, this same type of thing is still happening. In April 2010, in the Omar Khadr case, something like this happened again. Literally on the eve of Khadr’s trial beginning at Guantanamo, the new Manual for Military Commissions was still a work-in-progress over in the Pentagon. The Secretary of Defense signed it in the evening and the nearly 300-page document was handed to Khadr’s defense team just a few hours before the judge banged the gavel. It was like a football game where the teams are on the field, down in their stance and waiting for the ref to blow the whistle for the kickoff, and then the league says “oh, by the way, here’s a new rulebook … now have a good game.” That kind of thing is still happening. The government published another 250 pages of new rules and regulations in November and December. Someone described it quite accurately as trying to lay the tracks in front of the train after it has already the left the station.

The Talking Dog: Let’s talk about Mohammad al-Qahtani, a detainee whom Susan Crawford, in declining to proffer commission charges against because she said he was tortured; can you talk about him? Also, can you assess to what extent “the evidence” you had access to in order to make cases against the presumably several dozen men eligible for military commission trials consisted of coerced statements by themselves or other detainee (you could characterize this as “none,” “a little,” “some,” “a lot” or any other way you’d like to do it)?

Morris Davis: As to the Qahtani part of your question, as the chief prosecutor, my job was generally oversight of all of the prosecutions rather than in-depth knowledge of the specific details of any one of them. The prosecution task force was over 100 people at the time I resigned, including civilians, JAGs, CIA, FBI, and others; in short, it was a large organization and running it did not allow me to spend a great deal of time on all of the cases.

I was, however, going to personally handle the prosecution of Qahtani. I came on about a year before the “high value” detainees arrived, and at that time Qahtani was the “dirtiest” case, from the stand point of how he had been treated. As I was the guy in charge, I felt it was me who should get my hands dirty with it rather than pawning it off on my subordinates, so I decided that I would personally prosecute the case. I didn’t have enough time to devote to preparation of the case to move it up the list of cases we intended to charge, but I believed … and I still believe … there was enough evidence independent of his own statements made in our custody to present a persuasive case; the torture he received would have been “unfortunate and interesting … but irrelevant in his trial.” Qahtani made his way from the Middle East to Orlando where he was to be met by Mohammad Atta who showed up at the airport at the same time his plane landed, following pretty much the same route as the other hijackers before him. I felt there were plenty of “puzzle pieces” to paint a picture sufficient to convict him, even without the coerced statements. At the time I resigned in October 2007, Qahtani was still pretty far down the “batting order” in the list of cases for potential prosecution.

As to the other part of your question, there is a misperception that detainee cases were somehow homogeneous. They were not: each detainee had a different situation. Hamdan was just in it for the money — he drove for Bin Laden for $100; for $150, he’d probably have driven for someone else. Hicks was an adventurer who ended up getting a lot more than he bargained for. Some others were truly dedicated to the cause. Each detainee had a different set of circumstances and the evidence was unique to each case, so I can’t put any kind of a percentage on how much was coerced or anything of that nature. We wanted to proceed in a logical order common to prosecutors — we wanted to work plea deals, like in RICO cases, and start with people willing to make deals, in hopes that we could get people to cooperate as we went after the bigger players.

The one consistent belief among the prosecutors was that the one case we did not want to lead with was David Hicks. We had been telling the world for years that these guys were the “worst of the worst” and we knew the world would be watching when the first trial began. To lead off with a minor player and a complete knucklehead like David Hicks just did not bode well for the military commissions, but it got crammed down our throat by our superiors. As I said, Qahtani was still pretty far down the list when I left.
Before we move on, let me comment on Susan Crawford and her disclosure that Qahtani was tortured. Her public statement on this to Bob Woodward was in January 2009, in the final days of the Bush administration and shortly before President Obama’s inauguration. However, she made her decision not to charge Qahtani because of torture in the spring of 2008. It appears to me that rather than being a “courageous act” as some have suggested she was simply trying to get on the right side of history before it was too late. I am grateful that she recognized torture when she saw it and that she was eventually willing to state publicly that the U.S. engaged in torture, but it would have been courageous had she stood up during the heart of President Bush’s final term rather than staying silent until his final hours in office. It would have been courageous had she stepped up in August and September of 2007 when I was asking her to help me preserve the integrity of the process; instead, she didn’t lift a finger to do anything and I resigned. In any event, Qahtani remains at Guantanamo. I still believe that a case could be made against him that did not rely on his own statements.

The Talking Dog: You have stated that the commissions were neither “military” nor “justice.” Do you believe that the Obama Administration’s later tweaks with the commissions process, applying to those commissions going forward, and to the extent contained in the National Defense Authorization Act of 2011 (recently signed into law remedy) this — in a non-superficial way? Also, Sen. Lindsey Graham of S. Carolina, in support of the NDAA, recently made a number of arguably troubling comments during the NDAA debate (such as Americans accused of betraying their country would have no right to counsel or trial) that seem out of character for a USAF JAG officer such as Sen. Graham (who, at least in the past, has often been, as far as these things go, a comparative voice of reason)… I’m wondering if you can comment on that?

Morris Davis: As to the first part of your question, the answer is “no”: I don’t think the “reformed” military commission process is significantly different from the military commissions as I left them in October 2007.

Candidate Obama was adamant about the gross injustice of the military commissions, until, of course, he flip-flopped and embraced military commissions. He needed something face-saving, so enough “changes” were made to give him some political cover to claim things were different.

The Military Commissions Act of 2009 was just a politically motivated veneer slapped onto the old process to give the administration an excuse for embracing what it had condemned. If you look beneath the veneer you see that the most significant change to what had been the last “reformed” incarnation of the commissions is a slight change to the hearsay rule. Under the old rules, hearsay was presumed reliable and the burden was on the opponent of a hearsay statement — most often the accused — to show by a preponderance of evidence that the statement was unreliable. The “big change” made in 2009 was that the burden shifted to the proponent of hearsay evidence to show, by a preponderance of evidence, that the hearsay evidence is reliable. This change is, basically, a burden shift from the accused to the prosecution, in most instances, of about 1/100th of one percent. A preponderance of evidence is a 50.001 percent versus 49.999 percent standard. If swapping the hearsay burdens around represents a significant change, then there has been a significant change. I don’t think it’s anything more than a little coat of whitewash to give President Obama some political cover.

As to the second part of your question, I joined the Air Force in 1983, right after law school. One of the great things about being a JAG is you get courtroom experience very quickly. My first trial was in the spring of 1984, and one of my opponents was Captain Lindsey Graham. The case involved the Air Force’s urinalysis program. Then Captain Graham appeared on 60 Minutes talking about the flaws in the testing program, which was eventually scrapped and rebuilt from the ground up. During the 1984 trial I was involved in — his side won by the way — a number of officers, during a break in the trial one weekend, talked about “what we wanted to do when we grew up.” Captain Graham said “I’m going to finish my service commitment, go home to South Carolina, and someday run for Congress!” You have to admire a man with a plan! He’s stayed in the Air Force Reserves, and has been an extremely dedicated member of the Air Force JAG community.

After the Hamdan case was decided by the Supreme Court invalidating the then-existing version of the military commissions created by President Bush, I was asked to meet with Senators McCain and Graham, in September of 2006, to talk about the proposed Military Commissions Act. Senator Graham’s first question to me was “What do you need to get the job done right?” I personally wrote some parts of that Act — such as, ironically, the part about not permitting undue command influence to effect the prosecution! The MCA involved proceedings similar to the Uniform Code of Military Justice, but there were some differences in the MCA. After the high value detainees showed up in September 2006, things changed. Before their arrival, I was largely autonomous and the prosecution team worked in a fairly unfettered environment where we could exercise our best professional judgment. But afterwards, everybody had an opinion on how I should do my job — especially the Department of Justice. Prosecuting Khalid Sheikh Mohammad in military commissions was something that disappointed some in the Justice Department. Prosecuting his case in federal district court could be a huge career-maker for an aspiring DOJ lawyer, so when President Bush chose the military commission option there were some that were not enthused. They accepted the decision, but rather than let the military handle it they still wanted to pull the strings and tried to run the show. That was why I asked Senator Graham to add the unlawful influence language to the MCA.

My own Congressman — alleged Democrat Gerry Connolly of Virginia — was every bit as helpful in standing up for free speech in 2009 as Susan Crawford was in standing up against torture in 2007. The only member out of the 535 members of Congress who stood up for me was none other than Senator Lindsey Graham, who noted that even though he may not agree with my views, I had the right to express them and it was an important perspective for the public to hear. Lindsey Graham was the only one with the guts to take the political risk and speak up for me, which I greatly appreciated. I was not from his state, I was not one of his constituents, I have not donated to his campaigns, and I’m not even a member of his party, so there was nothing in it for him other than just doing what he thought was right.

As to his statements of late, Senator Graham represents South Carolina, which is on the very far right of the political spectrum. His recent statements would appear to be political posturing largely for the benefit of a right wing South Carolina electorate.

The Talking Dog: I understand that, like me, you made some financial contributions and did some work for the campaign to help elect my [Columbia ’83] college classmate Barack Obama to the office of President back in 2008 (including have someone burn down a lawn sign you posted at your house!) My own assessment of the President on GTMO/war on terror (or whatever it’s called now) issues is, in a word, “disappointing.” I’m wondering if you could provide your own views on President Obama’s performance in these areas? Do you have any predictions for the future of Guantanamo, Bagram, military commissions, indefinite detention or the like going forward, say, in a second Obama term or perhaps a Romney Administration?

So, in October 2008, after I retired, I had my first chance to participate in the political process in 25 years. I live in a rather conservative part of Virginia, but I put up a Barack Obama sign in front of my house, I donated to his campaign, and I was a volunteer who went door-to-door campaigning on his behalf. When someone came into my yard and set my Obama sign on fire, I put up a new one! I bought into the whole “hope and change” B.S. On Barack Obama’s Inauguration Day, I was the most excited guy in town!
And so, “disappointed” is a gross understatement. What we have seen is an extraordinary lack of leadership on these issues. I met with the transition team on Guantanamo in November of 2008, and my first impression was “I don’t think they get it!” They didn’t seem to understand that there weren’t neat cabinets of files pertaining to each individual detainee to conveniently explain everything — the reality was that things were a total mess. The reason, of course, is that Guantanamo was set up as an intelligence gathering operation, and not for the purposes of prosecution; “intelligence” is not the same as “evidence.” They simply did not understand the enormity of the task they had taken on. And so, it seemed, Obama focused on health care and the economy, and without investing the political effort needed on Guantanamo, he thought the right thing would just happen. In the meantime, Dick Cheney and his daughter Liz Cheney went on the offensive, and managed to do a very effective job of swaying public opinion and making people fear everyone at Guantanamo. The President didn’t use his bully pulpit, and the public has ended up buying into the whole notion of all detainees being the absolute “worst of the worst.” It has been just a real disappointment after what looked like such an optimistic start.

In the short term, I see no prospect of any change — and certainly not in 2012. It seems somewhat narrow minded to just look at the 171 guys still at Guantanamo and not at the broader situation — we should be asking, what would we accept if one of us was treated this way? Would we be willing to accept the same treatment of Americans and, if not, then why do Americans accept it when we do it to others? We used to be the land of the free and the home of the brave, but we’ve allowed the fearmongers to make us the land of the constrained and the cowardly.

In the long term, there are those who suggest that Obama may have less pressure in his second term as he won’t be running for reelection and, under those circumstances, he may be more inclined to expend some effort to resolve these things, but that would certainly be disappointing if matters of principle can only be pursued when the political calculus is right. If it’s always the right time to do the right thing then it’s always the wrong time to wait until it’s politically convenient.

The Talking Dog: I understand you have worked with a non-governmental organization devoted to educating the public concerning the laws of war; can you talk about its mission? Also, can you describe, overall, how you believe “the Guantanamo experience,” whatever that is, has effected you personally?

Morris Davis: When I resigned as chief prosecutor for the military commissions in 2007, I immediately received an order directing me that I couldn’t talk about why I had resigned. And so, when I spoke out I immediately burned my bridges on the Republican side of the aisle! Then I went to work on Capitol Hill at the Library of Congress where I managed to burn my bridges with Democrats in 2009 with my opinion pieces criticizing President Obama! I have hit that rare sweet spot where I’ve become unemployable on both sides! I found that I had a B.A., a J.D., 2 LL.M.s, and 25 years of experience, and, in a city full of lawyers I was on unemployment for seven months because I was too toxic to hire!

The Crimes of War Project was started by journalists in the aftermath of the conflict in the former Yugoslavia, with the idea in mind that maybe we could reduce future tragedies by educating people about the laws of war and the consequences of noncompliance. They brought me on board in August of 2010 to be the executive director. Since 9-11, whole industries have grown up to address the supposed threat of terrorism and politicians fall all over themselves to show how tough they are on terrorism. There is little interest in the Geneva Conventions, and investigating allegations of torture, and respecting treaty obligations and international institutions. Unfortunately, at this point in time, trying to educate people on the laws of war seems to be something few people believe is an effort worth supporting.

And so, I am now teaching at the Howard University School of Law. Dean Kurt Schmoke, the former Mayor of Baltimore and now the head of the law school, was willing to take me aboard and has been very gracious in allowing me to still write and speak on issues like Guantanamo, torture, and targeted assassination. Howard has deep roots in the civil rights movement, so it is appropriate I suppose that it’s a place where an advocate for humanitarian law can find a home.

The last few years have been interesting if nothing else. I got canned and ostracized under both Republican and Democrat administrations, and I find myself somewhere in the middle between the left and right where you won’t find an organized movement or benefactors like the Koch brothers or George Soros. I guess one of the most surprising lessons I’ve learned is that honesty, integrity, courage and principles are virtues society values far more in theory than they do in practice. I think when you’re willing to compromise core principles to protect your own self-interest you’re pathetic and cowardly. I do regret that my wife and my daughter suffer some of the collateral consequences of me expressing my opinions, but I’ve never had any second thought about saying torture is wrong and America can do better than it’s done the past decade. I suppose some people look at Don Quixote and see an idiot who puts himself through a lot of hardship he could easily avoid. I admire him for being willing to suit up and fight.

The Talking Dog: As we come to a point in time ten years after the opening of Guantanamo Bay for military detentions of persons captured in Afghanistan and elsewhere, is there anything else I should have asked you but didn’t, or anything else you believe that the public needs to know about this?

Morris Davis: One thing comes to mind. We chose Guantanamo a decade ago because some people thought that it was outside the reach of law. And now, we have 171 men stuck in a legal Alice in Wonderland. And so we continue to make bad laws, like the NDAA and the “reformed again and again military commissions” — to continue to try to deal with men we are holding because we took short-cuts and made bad decisions years ago. My hope is that common sense prevails and we can look rationally at the big picture, and we stop trying to make even more bad laws rooted in our prior bad decisions. I hope at some point we remember who we are and what we stand for, we reckon with what we did in the past, and we stop living our lives in fear. I hope we become free and brave again.

The Talking Dog: I join all my readers in thanking Col. Morris Davis for that eye-opening interview.